October 17, 2012
Re: Update on S-1451 and S-1452 – Amendments to OPRA and OPMA
At the last meeting of the Senate Budget and Appropriation Committee before summer recess, S-1451, which revises the Open Public Meetings Act, and S-1452, which revises the Open Public Records Act, were amended and released without recommendations. At that time, Senator Weinberg, sponsor of both bills, noted that she wanted to meet with stakeholders to discuss amendments.
The revisions to S-1451 (OPMA) are as follows:
- Removes the requirement to have estimated start time for public comment on the agenda. Requires that the estimate start time for the meeting in which the public is not excluded be on the agenda.
- Removes the ability to discuss a matter not listed on the agenda, including if the matter is brought up by a member of the public during public comment. However, the governing body can still take action on any matter not listed on the agenda by a 2/3 vote of the members present at the meeting.
- Changes the vote needed for an emergency meeting from ¾ of the members present to 2/3 of the members present.
- Changes the language regarding private communication. Removes the term “any” means and replaces it with “means of communication equipment, including electronic mail, instant messaging or similar technologies”
- Removes the requirement to have 2 public comment periods at every meeting. Instead requires that there is a public comment prior to the consideration of items on the agenda.
- Changes the exception to personnel matters to “employment, appointment, termination, evaluation, promotion or discipline”. Still requires a Rice Notice to employee and every other known employee or officer whose employment, appointment, termination, evaluation, promotion or discipline might be disclosed.
- Removes the requirement, for those with sound recording devices, to record closed session meetings.
- Removes the language that closed session recordings are exempt as a public record until such time as the justification for holding the closed session no longer exist
- Removes the requirement that any revisions to the annual notice be published
- Deletes the requirement that DCA establish a central website for all public notices
The revisions to S-1452 (OPRA) are as follows:
- Removes the phrase “Nothing contained herein shall constitute an exception under the law.”
- Adds the following exceptions to OPRA:
a. e-mail addresses of any individual provided to a government entity for the sole purpose of receiving emergency notifications
b. portion of any document which discloses personal information of persons under the age of 18 years
- Removes the definition for “Privacy” and “Reasonable”
- For redactions, removes the phrase “in their entirety” for specifying the total number of pages deleted or excised
- For special service charge, removes the requirement for the index and replaces it with a detailed breakdown of how the special service charge was assessed. In addition, it removes the requirement to provide a description of exempted records.
- Changes the proposed composition of the Government Records Council.
a. Removes the DCA Commissioner, Education Commissioner, Attorney General, President of the Municipal Clerks Association and 3 public members.
b. 4 public members – 1 Municipal Clerk or retired Municipal Clerk, 1 with knowledge of or experience with the news media, 1 representative of local government and 1 member of the general public. The 4 public members are to be appointed by the Governor, with the advice and consent of the Senate and no more than 2 of the same political party.
c. 3 public members appointed by the Governor, 1 upon the recommendation of the Senate President, 1 upon the recommendation of the Assembly Speaker, and 1 upon the joint recommendation of the Senate President and Assembly Speaker. No more than 2 shall be of the same political party.
d. The 7 members appointed by Governor shall serve during the term of the Governor making the appointment and until the appointment of a successor, except the Chair
e. The Governor shall appoint 1 of the 7 members to serve as chair of the GRC. Once appointed that person shall serve as chair for 6 years from the date of appointment and until a successor is appointed and qualified. The chair may be removed by the Governor only for cause upon notice and opportunity to be heard.
f. A member may be removed by the Governor only for cause upon notice and opportunity to be heard
g. Only the public member who is a representative of local government shall be able to hold a State or local elected or appointed office or employment while serving as a member of the council.
- Requires the posting of the GRC Executive Director’s recommendation for each case on-line 24 hours prior to the meeting, to the extent known. In addition, requires that the paper copies of the same be available at the meeting with any changes or additions that were not presented when the information was posted on-line.
- Each party shall have 1 opportunity to provide to the GRC any documents or information necessary for the adjudication of the case
- Provides for the ability of the Superior Court to issue a protective order limiting the number and scope of requests a requestor can make. The protective order can be issued if the Court determines that a requestor has sought records for an improper purpose, which includes but is not limited to, the harassment of the public agency and its employees. The order may limit, or if appropriate, eliminate the public agency’s duty to respond to government records requests from the requestor in the future. The order is immediately reviewable by petition to the appellate court. Any person who fails to obey the order of the court shall be cited to show cause why they are not in contempt of court. The county of residency is any address listed on the government records request.
Throughout the summer, Lori Buckelew has been working with a group of stakeholders to outline our concerns and suggested changes to the bills. Lori, along with William Kearns and Matt Weng, met with the ACLU-NJ to develop a joint memo outlining our joint concerns with the bill along with suggested language changes. At a September 11 meeting with Senator Weinberg, the ACLU-NJ and the League, we discussed our joint concerns and proposed changes. Senator Weinberg was receptive to some of our suggested changes. We thank Senator Weinberg for meeting with us and considering our concerns. We are hopeful that our recommendations will be accepted. We will continue to keep you advised of any new developments.
Questions on S-1451 and S-1452 can be directed to Lori Buckelew at firstname.lastname@example.org or 609-695-3481 x112.
Very truly yours,
William G. Dressel, Jr.